According to UNCHR, the United Nations refugee agency, at the end of 2019 there were 79.5 million people forcibly displaced worldwide, including 26 million refugees and 4.2 million asylum seekers. The percentage of the world’s population that are displaced is at an historic high, with 1 in 97 people currently displaced. Not only is the sheer number of those fleeing harm increasing, but so is the vulnerability of the populations seeking safety: 40 percent of those forcibly displaced are children. In addition, 85 percent of those forcibly displaced are located in the Global South.
As the 70th anniversary of the 1951 Convention Relating to Status of Refugees, the UN treaty that defines a refugee and the rights that flow from such recognition, looms, it is increasingly clear that the current international framework is ill-equipped to respond to the realities of both current refugees and other forcibly-displaced individuals. There are also issues of the capacity and willingness of nation states to receive these displaced persons. Moreover, historically refugee protection and assistance has been woefully inadequate in recognizing and incorporating the needs, desires, and rights articulated by refugees themselves.
Recognizing these shifting realities, coupled with a normative imperative to create policies that incorporate refugees and fueled by the arrival of over a million migrants and asylum seekers to Europe in 2015, the UN General Assembly adopted two Global Compacts: the Global Compact on Refugees (GCR) and the Global Compact on Safe, Orderly and Regular Migration in December 2018 (GCM). These compacts were the culmination of a two-year consultative process with nation states, civil society groups, refugees, experts, scholars, and international organizations, and demonstrate a notable reform in the UN frameworks addressing refugees and migrants. (Ferris and Martin 2019, at 5-6). Central to the GCR is the recognition that refugee protection requires international cooperation and individual states, particularly those proximate to refugee flows, can and should not shoulder the duty for refugee protection alone. While the state signatories to the Convention and the 1951 Convention remain a core aspect of GCR, new models of intergovernmental cooperation are called upon to coordinate refugee flows and provide protection. The GCR seeks to operationalize responsibility sharing by better coordinating efforts among a host of actors including the private sector and development agencies. (Miller 2019, at 173-174)
In addition to bringing development agencies and other global actors to the negotiating table, the GCR also included refugees and civil society groups in the consultations. This was not without challenges. Rother and Steinhilper argue that historic refugee inclusion in UN processes was flawed and truly lacked a bottom-up framework because many of the non-governmental organizations at the table were large, highly-professionalized entities that often contracted with UNHCR. To compound this, when refugees were present they were often tokenized. Refugee voices and meaningful input were evident in the drafts and final version of the GCR. Their main demands were meaningful participation in refugee policymaking, including at the international level; strengthening a rights based approach to protection and assistance; and creating a mechanism for further input by affected communities (Rother and Steinhilper 2019, at 252).
While refugees groups, in particular, The Network for Refugee Voices (comprised mostly of Syrian refugees) disrupted previous models of refugee participation by demanding that refugees must be part of global refugee policymaking, it still remains to be seen whether or not the policies and frameworks created in the GCR were effectuated in ways that truly provide agency to refugees.
Specifically, while there was an increased emphasis on bridging the “assistance-development gap” and reconceptualizing development assistance as part of displacement assistance, there was critical inattention to how such assistance, humanitarian or development, often elides refugee agency. In part because assistance is often executed as an act of benevolence or discretion by a State; as such it is not grounded in a rights-based framework. (Ticktin 2016, at 265-266).
The problematic of discretion is no more evident than in the United States case. Its laws and policies toward refugees, whether cloaked in securitization and protection of national borders or an act of benevolence, are not grounded in rights, but rather in sovereign prerogatives. As such, refugees and asylum seekers have no legal recourse to exercise or realize their rights as articulated in international instruments such as the Declaration of Human Rights, the 1951 Convention Relating to the Status of Refugees, the GCR, or U.S. domestic asylum law.
The Trump Administration refused to sign the GCR, despite U.S. involvement in consultations. Indeed, the Trump administration actively sought to narrow and eliminate procedural and substantive protections for asylum seekers and refugees through the Migration Protection Protocols which required asylum seekers to remain in Mexico, in unsafe and unsanitary conditions, while petitioning for asylum in the United States; separating families, detaining children as young as toddlers; narrowing the legal definition of refugee under U.S. law to exclude those fleeing certain types of gender-based violence and gang violence; basically eliminating the U.S. refugee resettlement program; and thwarting adjudicators ability to exercise independent judgment in asylum cases.
While the new Biden administration quickly moved to reverse many of these draconian policies, such actions were not motivated to enshrine rights in such policies, but rather to show compassion. Such policies privilege state centrality and position the state as the central singular actor, the benevolent sovereign. If the new administration truly wants to improve the lives of asylum seekers and refugees, U.S. law must be drastically altered to create legally enforceable rights for these individuals that seek to mitigate and eliminate refugee precarity. For example, detention of asylum seekers should only be used in exceptional circumstances after an individualized hearing before an independent adjudicator and the continued detention of an asylum seeker should be subject to periodic review. Asylum seekers should not be required to file their asylum claim within a certain arbitrary time period and should be allowed to work while their claim is being adjudicated.
While it is true that the Global Compact on Refugees is aspirational in nature and non-binding on member states, it is important that development in refugee law and policy provides a normative framework for protection, is responsive to current global realities, is inclusive of refugee voices, and is premised on international cooperation. The United States should seek to incorporate these advances and aspirations, particularly those generative of refugee voices into domestic policy, and in doing so, recognize asylum seekers as active rights-bearers and participants in the political system, not passive subjects at the mercy of state aid.
Erin Corcoran is Executive Director of the Kroc Institute for International Peace Studies and Associate Teaching Professor at the Keough School of Global Affairs at the University of Notre Dame.
Listen to an episode of The Kroc Cast podcast featuring the authors from this issue of Peace Policy:
Bibliography
Ferris, Elizabeth E., and Susan F. Martin. 2019. “The Global Compacts on Refugees and Safe and Orderly Migration: Introduction to the Special Issue.” International Migration 57, no. 6 (November): 5-18. doi: 10.1111/imig.12668.
Miller, Sarah D. 2019. “The GCR and the Role of Development Actors with Refugees: A Game-Changer or More of the Same?” International Migration 57, no. 6 (November): 173-187. doi: 10.1111/imig.12633.
Rother, Stefan, and Elias Steinhilper. 2019. “Tokens or Stakeholders in Global Migration Governance? The Role of Affected Communities and Civil Society on the Global Compacts on Migration and Refugees.” International Migration 57, no. 6 (November): 243-257. doi: 10.1111/imig.12646.
Ticktin, Miriam. 2016. “Thinking Beyond Humanitarian Borders.” Social Research: An International Quarterly 83, no. 2 (Summer): 255-271. muse.jhu.edu/article/631162.
